The opinion of the Court was delivered by

The ease does not admit of the least doubt. This was not a prosecution. There can be no prosecution without an arrest. It is indispensably necessary to support this action, that malice (and that the arrest was without probable cause,) be alleged and proved. 2 Sel. IsF. P. 1051. If a man make an affidavit charging the commission of an offence or crime, but never takes out a warrant, although he may subject himself to an action, he will not be liable to this action.2 But if, by any possibility, it could be considered as a prosecution,3 it was necessary *402to show that it was at an end ; and the refusal of the grand jury to act on it, would not have been a final termination of it; for the defendant might have applied to another grand jury, who might have thought proper to present the defendant.

The motion is dismissed.